Underaged Drinker Can Sue Bar for Injuries He Suffered As a Result of Bar Serving Him in Violation of Drinking Statute

Jarrett v. Woodward Bros., Inc., 751 A.2d 972 (D.C. 2000). Opinion by Ruiz, joined by Reid; Kern dissenting in part. Trial court: Huvelle.

FACTS: Nineteen-year-old college student went to Winston's, a restaurant-bar in Georgetown. He had already consumed 4-6 beers at a friend's house. Student was carrying his own ID plus three fake ID cards. After arriving at Winston's, student drank a number of shots of liquor plus some bottles of beer to the point that he appeared "ridiculously drunk" to his friends, although bar continued to serve him. Student left bar by himself and was hit by a car later that night and died. His blood alcohol was .298 % by weight. His parents sued the bar for illegally and negligently serving a patron who was underage and already intoxicated, alleging that excessive alcohol caused his death. Trial court granted summary judgment on grounds that intoxicated patron was not in the class intended to be protected by the statute, D.C. Code § 25-121, and that his own reckless conduct would bar his recovery.

OUTCOME: Summary judgment for bar REVERSED.

HOLDING:

(1) Having already decided that Alcoholic Beverage Control Act, D.C. Code § 25-121, creates a standard of care for liquor establishments (see Rong Yao Zhou v. Jennifer Mall Restaurant, 534 A.2d 1268 (D.C. 1987), court now holds for first time that intoxicated underage patrons are also "members of the class" that the statute was designed to protect. Court relies on legislative history of the ABC act.

(2) Bar is not entitled to contributory negligence defense since that common-law defense cannot defeat a claim concerning violation of a safety statute.

(3) Bar is not entitled to assumption of risk defense since the statute barring the bar from serving underaged and intoxicated patrons is specifically designed to protect patrons from their own bad choices.

"Sick Building" Injuries: Plaintiffs Can Win on Emotional Injury Alone

Bahura v. S.E.W. Investors, 754 A.2d 928 (D.C. 2000). Opinion by Schwelb, joined by Reid; Steadman dissenting in part. Trial court: Rufus King III.

FACTS: Plaintiffs sued owner of EPA headquarters building in southwest Washington, alleging health problems due to polluted indoor air related to extensive renovations in the building. At trial of five representative plaintiffs who worked in the building, plaintiff experts contended plaintiffs had suffered genuine neurological injuries from small amounts of airborne pollutants. Defense experts
contended plaintiffs had "somatization disorder," that is, no true physical injury, but rather physical symptoms caused by (1) pre-existing emotional problems or (2) a reaction to unpleasant odors in the building. This latter effect is called "odorant conditioning" - where an initial adverse physical reaction to a noxious odor from a pollutant can cause the victim to experience the same kind of
adverse physical reaction to later experiences of a similar odor. The defense experts said the plaintiffs' physical symptoms were genuine, not faked, but nonetheless caused by an emotional reaction. No plaintiff expert agreed that any plaintiff had suffered such a somatization disorder, but in closing argument, plaintiff's counsel said that plaintiffs should be entitled to recover whether they had suffered real brain damage or just somatization. In deliberations, jury asked if somatization was considered injury. Court subsequently had jury return special verdict on that issue, and jury found that only one plaintiff had suffered physical injuries but the other four had all suffered somatization injuries. Trial court granted judgment as a matter of law (JMOL) against somatization plaintiffs on grounds that somatization injuries were neither serious nor verifiable on the evidence presented.

OUTCOME: Judgment notwithstanding the verdict REVERSED and verdicts REINSTATED.

HOLDING: Fact that plaintiffs prevailed on damages theory advocated not by them but by defense experts was not reason to overturn the plaintiffs' verdict. Evidence of "odorant conditioning" plus fact that workers did not experience symptoms until moving into the building provided sufficient evidence.

NOTE: Court also rejects plaintiffs' request that it adopt a Daubert/Kumho test of expert testimony and said that it was required as a division of the court to abide by the prior evidentiary test from Frye v. U.S. of "general acceptance."

Trial Court Is Justified in Striking Future Medical Bills First Disclosed in Mid-Trial and Not Telling Jury that Evidence Has Been Stricken

Sowell v. Walker, 755 A.2d 438 (D.C. 2000). Opinion by Schwelb, joined by Washington and Kern. Trial judge: Rufus King III.

FACTS: Plaintiff letter carrier was bitten badly on the legs by defendant's dog, who had bitten other people. After close of discovery, plaintiff consulted plastic surgeon about surgery to reduce her scarring. In pretrial order, plaintiff was ordered to disclose surgeon's opinions in a Rule 26(b)(4) statement. Plaintiff's subsequent disclosure said that the surgeon was being called solely as a treating doctor and that he "will testify relative to his current treatment plan and what he expects to accomplish." Pretrial judge denied motion to strike this statement as insufficient. Nine days before trial, plaintiff provided surgeon's handwritten notes with a specific estimate of his surgical fees of around $5,000. During trial, the doctor then added an extra $19,000 to his estimate of future medical bills for hospital charges. Trial court granted defendant's motion to strike this new evidence of hospital fees although court allowed evidence of doctor's own fees. However, court did not instruct jury, even when jury asked during deliberations, that the hospital charges had
been stricken. Jury's subsequent verdict for a total of $52,000 (the breakdown of which included the hospital fees) was reduced by trial court to $33,000 to account for the stricken evidence. Plaintiff appealed.

OUTCOME: Judgment in reduced amount AFFIRMED.

HOLDING:

(1) Pretrial order that plaintiff disclose substance of plastic surgeon's opinions required fair disclosure of cost estimates re hospital fees, despite plaintiff's arguments that (A) defendant had lost a motion to strike the Rule 26(b)(4) statement as insufficient and (B) surgeon could be characterized as a "treating doctor" not subject to Rule 26 disclosures.

(2) Plaintiff's argument that jury might have given her more money in general damages if it had known that her hospital expense evidence had been stricken is "not implausible," but since it was the plaintiff's fault that this impermissible evidence was first disclosed in the presence of the jury, it was not unreasonable for the judge to fail to tell the jury that the evidence was no longer in the case.

Damages: Error to Bar Plaintiff from Offering Lost Wages Evidence Where Uncertainty about Wages Was Fault of Defendant's Negligence

Hawthorne v. Canavan, 756 A.2d 397 (D.C. 2000). Opinion by Schwelb, joined by Terry and Farrell. Trial court: Dixon.

FACTS: Plaintiff was rear-ended by defendant. Defendant conceded liability but contested damages. Jury awarded plaintiff precise amount of her medical bills. Plaintiff moved for new trial on grounds that she was entitled to recover for her pain and suffering and for lost wages during her convalescence. Trial court denied motion.

OUTCOME: Judgment REVERSED in part, granting plaintiff new trial on lost wage claim alone.

HOLDING:

(1) Plaintiff is not entitled to new trial for lack of jury award on pain and suffering, inasmuch as plaintiff did not have permanent injury, there was no objective proof of injury such as need for surgery, and jury was entitled to have doubts about the severity of the injuries and the extent of the pain they had caused.

(2) Trial court erred in granting motion in limine barring plaintiff's evidence of lost wages. Plaintiff had been laid off from her job three weeks before the accident. However, she obtained a job soon after she recovered from the injuries, and she therefore had sufficient evidence that the injuries had caused her inability to look for and obtain work earlier. Defendant cannot take advantage of the lack of evidence that an employer would have been willing to hire her during the time when she was out of work, because her failure to apply for work was caused by the defendant's negligence.

SEE ALSO: Douglas v. WMATA, 757 A.2d 91 (D.C. 2000). Plaintiff with six prior neck injuries who alleged that bus accident caused her to need cervical disc fusion could not complain of jury's failure to award her pain and suffering damages, where Dr. Robert Gordon testified for defense that surgery was unnecessary and accident had caused at most a muscle strain.

Statute of Limitations for Legal Malpractice: Fiduciary Relationship Between Client and Lawyer Can Excuse Client's Failure to Investigate Lawyer's Wrongdoing Sooner

Ray v. Queen, 747 A.2d 1137 (D.C. 2000). Opinion by Schwelb, joined by Washington; Reid dissenting. Trial judge: Bowers.

FACTS: A man was killed in a car-bus crash, leaving as survivors his widow and their five adult children. He had no will. One of the children was named personal representative (PR) of the estate. The PR hired lawyer Thomas Queen, who filed a survival action. The case was settled for a lump sum of $225,000 plus 10 years of monthly payments to the widow. On the lawyer's instructions, the PR endorsed the settlement check and returned it to the lawyer, who then disbursed $5,000 sums to each of the five children, and the balance of over $100,000 to the widow. The lawyer entered a secret side agreement with the widow in which she acknowledged that under the intestacy statute, she was entitled to only one-third of the net proceeds and that she would indemnify the lawyer against any claims the children might bring against him for not obtaining their collective two-thirds share. These events occurred in 1990. Mother bought a house with the proceeds. She died in 1996, and children learned then about the indemnity agreement between the mother and the lawyer. They sued the lawyer later in 1996 for legal malpractice. Trial court ruled that kids were on notice as of 1990 of the lawyer's possible wrongdoing because they knew how the lawsuit proceeds had been disbursed, and therefore suit was time-barred.

OUTCOME: Summary judgment for defendant REVERSED.

HOLDING: (1) Client personal representative relied on lawyer for legal advice about estate matters, and thus, even though lawyer had been officially retained only for death litigation and not for probate matters, lawyer still owed fiduciary duty to personal representative. Fiduciary relationship excuses client from a more diligent inquiry into possible wrongdoing. Lawyer's disbursement of settlement proceeds contrary to intestacy law was at least arguably an implicit misrepresentation to the children that such disbursement was lawful. All these facts created at least a jury issue as to whether client had been on inquiry notice of wrongdoing in 1990.

(2) Lawyer's defense that he did not profit from the wrong and only did what the family asked him to is a factual defense for trial, not for summary judgment.

BRIEFS

Lawyer's Admission to Former Client that He "Screwed Up" Her Case is Sufficient Evidence to Defeat Summary Judgment in Legal Malpractice Claim. Trial court had granted summary judgment against former client after she failed to file proper Rule 26(b)(4) statement identifying expert. Court of Appeals holds that client's detailed testimony that lawyer had admitted that he "screwed up" both in preparation for and trial of her case was sufficient to create a genuine issue of material fact to defeat summary judgment. Christopher v. Bethune, 749 A.2d 130 (D.C. 2000).

Whether or Not Ambulance Is on Emergency Run Is Question of Law, not Fact. Plaintiff's car was hit by ambulance with lights and siren operating. Plaintiff contended since it was a low-priority injury run, jury should decide whether or not the ambulance was on a true emergency run for purposes of invoking "gross negligence" standard of care under D.C. Code § 1-1212. Court disagrees. Browner v. District of Columbia, __ A.2d __ (D.C. 2000).